576 F.3d 1290 (Fed. Cir. 2009), 2008-7129, Cushman v. Shinseki

Docket Nº:2008-7129.
Citation:576 F.3d 1290
Opinion Judge:PROST, Circuit Judge.
Party Name:Philip E. CUSHMAN, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
Attorney:Kevin A. Calia, Morrison & Foerster LLP, of San Francisco, California, argued for claimant-appellant. Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the br...
Judge Panel:Before SCHALL, PLAGER, and PROST, Circuit Judges.
Case Date:August 12, 2009
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1290

576 F.3d 1290 (Fed. Cir. 2009)

Philip E. CUSHMAN, Claimant-Appellant,

v.

Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7129.

United States Court of Appeals, Federal Circuit.

August 12, 2009

Page 1291

Kevin A. Calia, Morrison & Foerster LLP, of San Francisco, California, argued for claimant-appellant.

Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of

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Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Allison Kidd-Miller, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Tracey P. Warren, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before SCHALL, PLAGER, and PROST, Circuit Judges.

PROST, Circuit Judge.

This case involves an alleged violation of a veteran's right to due process under the Fifth Amendment to the United States Constitution, where the medical record on which his service-connected disability claim was evaluated contained an improperly altered document. In contending that a veteran has a protected property interest requiring fair adjudication of his claim for disability benefits, the Appellant raises a constitutional issue of first impression for this court. For the reasons discussed below, we find that a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits. We further find that Mr. Cushman's due process rights were violated in this case by the consideration of tainted medical evidence. We vacate the contrary decision of the Court of Appeals for Veterans Claims (" Veterans Court" ) and remand the case with instructions for a new hearing.

I. BACKGROUND

Philip Cushman served in a United States Marine Corps combat infantry battalion in Vietnam during the Vietnam War. While he was fortifying a bunker in Vietnam, a heavy sandbag fell on Mr. Cushman's back and damaged his spine. He was honorably discharged in January of 1970. Mr. Cushman underwent four spinal surgeries to treat his injury and has received continuous pain medication.

In October of 1974, Mr. Cushman filed a disability claim with the Department of Veterans Affairs (" DVA" ) at the Portland Regional Office. Following three years of interaction with medical examiners and Adjudication Officers at the Regional Office, the Board of Veterans' Appeals (" Board" ) found that Mr. Cushman's injury was service connected, and classified his symptoms as " pronounced" (a grade above " severe" ) with " persistent symptoms" and " little intermittent relief." See 38 C.F.R. § 4.71a (1982) (diagnostic code 5293). Mr. Cushman received a 60% disability rating, which is the maximum scheduled rating for a back injury.

Mr. Cushman secured a job as a manager at a flooring store. The job required some bending and lifting work, as well as supervision and paperwork. During his time on the job, Mr. Cushman's back condition worsened. Mr. Cushman avoided sitting and standing at work whenever possible. During his last few months at work he would typically lie flat on his back behind the store counter to fill out paperwork and whenever it was not necessary to move around. In November of 1976, Mr. Cushman was asked to resign his position at the warehouse due to his inability to perform his job duties.

In October of 1976, Mr. Cushman went to the Portland DVA Outpatient Clinic to have his condition reassessed. Records from that visit diagnosed him as having a postoperative ruptured intervertebral disc, with radiculopathy and degenerative joint disease affecting his lumbar and lumbosacaral spine. In November of 1976, when Mr. Cushman resigned from his job, he returned to the DVA Outpatient Clinic for another assessment. This assessment, dated November 15, 1976, was the last entry in Mr. Cushman's medical record

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before his files were sent to the Portland Regional Office. The last comment in the record stated, " Is worse + must stop present type of work."

Mr. Cushman filed a request with the DVA for a total disability based upon individual unemployability (" TDIU" ) rating in May of 1977. With his request, Mr. Cushman included a letter from his former employer explaining that Mr. Cushman could not continue to work at the flooring store because he was always lying on his back to do paperwork. The following July, the Regional Office denied Mr. Cushman's claim without obtaining his medical records. Mr. Cushman appealed to the Board. In February of 1978, the Board vacated the denial and remanded the case to the Regional Office with instructions to consider medical evidence in evaluating Mr. Cushman's claims.

The Regional Office obtained Mr. Cushman's medical records from the DVA Outpatient Clinic, and gave him a new hearing. In November of 1978, the Regional Office again denied Mr. Cushman's claim. The Regional Office did not discuss any medical evidence in its decision, although Mr. Cushman's medical file was included in the record. Mr. Cushman appealed again to the Board.

In April of 1980, the Board affirmed the decision of the Regional Office. Although the Board did not cite any particular evidence on which it relied in making its decision, the Board concluded that " the evidence fails to show the presence of symptomology which would preclude sedentary employment." The medical record before the Regional Office and Board, however, differed from the medical record on file at the DVA Outpatient Clinic. Namely, one of the doctor's entries had been altered to change the language " Is worse + must stop present type of work" to instead read, " Is worse + must stop present type of work, or at least [ ] bend [ ] stoop lift. " (emphasis added, brackets indicate illegible or stray marks). The altered record also contained the additional entry, " says he is applying for reevaluation of back condition," which does not appear in the official record on file with the Outpatient Clinic. The alterations appeared in the last, i.e., most recent, doctor's notes documenting Mr. Cushman's condition.

Mr. Cushman sought reconsideration of the Board's 1980 decision. In 1982, the Board affirmed its prior decision based on the same evidentiary record.

During this time, Mr. Cushman also filed a claim for disability benefits from the Social Security Administration ("SSA" ). The SSA requested Mr. Cushman's medical records from the DVA to consider in determining Mr. Cushman's eligibility for SSA disability benefits. The DVA sent to the SSA the version of Mr. Cushman's medical record that was on file with the Regional Office, i.e., the altered version. The SSA denied Mr. Cushman's claim, repeating in its decision language that appears only in the altered version of Mr. Cushman's record.

Mr. Cushman requested reevaluation and a TDIU rating in 1994. He returned to the Outpatient Clinic for another assessment of his back condition. Based on the medical record of that visit, the DVA found him to be incapable of substantially gainful employment, and granted his TDIU rating. Mr. Cushman has received TDIU benefits since August of 1994.

Mr. Cushman first discovered that there were two versions of his medical record in October of 1997. Mr. Cushman went to the DVA hospital to review his records in preparation for another hearing before the Board, this time seeking an earlier effective date for his TDIU rating. He also reviewed the record from his prior proceedings before the Regional Office and Board. He noticed that the medical record

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attached to his claim adjudication did not match the medical record on file at the DVA hospital. The file at the DVA hospital contained only the original, unaltered document.

Mr. Cushman wrote to the DVA about the discrepancy between the two versions of his medical record. The DVA conducted an investigation that confirmed that Mr. Cushman's medical record had been altered. In response to Mr. Cushman's inquiry, the Chief Executive Officer of the Portland Regional Office sent Mr. Cushman a letter in which he acknowledged the discrepancy between the two medical records, and explained that the DVA was unable to locate the original (wet ink) record among its files. He also apologized that the DVA was unable to " arrive at a reasonable explanation" for the nonconforming records. He confirmed that the official record is the one without the additional entries. The DVA instructed the Portland Regional Office to destroy all copies of the altered document in Mr. Cushman's file. The Office of Inspector General opened an investigation for fraud, but closed it three weeks later as unsubstantiated, two days after receiving the DVA's response to the complaint.

Upon learning of the nonconforming records, Mr. Cushman challenged the Regional Office's 1977 decision, and the Board's 1980 and 1982 decisions as containing clear and unmistakable error (" CUE" ). He argued that those decisions were based on medical records that were improperly altered to understate his disability. In February of 1999, the Board denied his claim on grounds that the 1977 decision was subsumed by the 1980 and 1982 decisions by the Board. The Board did not address Mr. Cushman's argument that the 1980 and 1982 decisions imported the same CUE.

Mr. Cushman timely appealed to the Veterans Court. In November of 2001 the Veterans Court affirmed the Board with respect to the 1977 decision, and found that it did not have jurisdiction to review the 1980 and 1982 decisions because Mr. Cushman did not properly raise a CUE claim for those decisions.

Mr. Cushman...

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